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Apr28
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U.S. Supreme Court Clarifies Definition of “Domestic Violence” for Lautenberg

ByDomestic Violence

Issue presented to the Court: Whether Appellant’s state court assault conviction qualified as a “misdemeanor crime of domestic violence” thereby prohibiting him from possessing a firearm under federal law (18 U.S.C. §922(g)(9)).

United States v. Castleman, 134 S. Ct. 1405 (2014)- In 1996, Congress passed 18 U.S.C. §922(g)(9), which criminalizes the possession of firearms by certain individuals.  This section makes it a federal crime for a person convicted in state court of a “misdemeanor crime of domestic violence” to own, possess, or transfer a firearm if the misdemeanor involved the use or attempted use of physical force.  In 2001, James Castleman was convicted in Tennessee of misdemeanor domestic assault for “intentionally or knowingly causing bodily injury to the mother of his child.” In 2008, federal agents learned that Castleman was selling firearms on the black market.  A grand jury indicted Castleman on two counts of possession of a firearm in violation of §922(g)(9) because of his previous “misdemeanor crime of domestic violence” conviction.

Castleman moved to dismiss the §922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a “misdemeanor crime of domestic violence” because it did not have the “use of physical force” element under §922(g)(9).  The District Court agreed and dismissed the §922(g)(9) counts, reasoning that Castleman’s misdemeanor domestic assault conviction did not qualify as a crime of domestic violence because ‘physical force’ must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning.  The Sixth Circuit affirmed on different grounds.  It held that the degree of physical force required for a conviction to constitute a “misdemeanor crime of domestic violence” is the same as the required for a “violent felony” under the Armed Career Criminal Act, §924(e)(2)(B)(i)-violent force- and that Castleman could have been convicted for causing slight injury by nonviolent conduct.

In a 9-0 decision, the United States Supreme Court overturned the lower courts, holding that Castleman’s conviction of misdemeanor domestic assault qualified as a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. §922(g)(9). According to the Court, §922(g)(9)’s “physical force” requirement is satisfied by the degree of force that supports a common-law battery conviction- namely, “offensive touching.” Justice Sotomayor, writing for the majority, explained, “Such acts of violence may be relatively minor, and could include hitting, slapping, shoving, grabbing, pinching, hair pulling, or a squeeze of the arm that causes a bruise.” She went on to say, “an act of this nature is easy to describe as ‘domestic violence’ when the accumulation of such acts over time can subject one intimate partner to the other’s control.” Once the court determined that “physical force” was at least offensive touching, the Court then looked to Castleman’s conviction of ‘intentionally or knowingly causing bodily injury’ to the mother of his child.  Because the knowing or intentional causation of bodily injury necessarily involves the use of physical force, his conviction qualified as a “misdemeanor crime of domestic violence” that fell within the scope of §922(g)(9).

So, what are the implications of U.S. v. Castleman going forward?  Now that the scope of §922(g)(9) has been clarified, federal prosecutors seem to have more legal authority to prosecute prior convicts based on state law convictions.  More specifically, if the defendant has been previously convicted for a misdemeanor crime of domestic violence, where the criminal act was any form of offensive touching, the person may be convicted for illegal gun possession under §922(g)(9) if he or she is subsequently caught with a firearm.

Apr14
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Warrantless Search: DWI Blood Draw Struck Down as Unconstitutional

ByDWI, Warrantless Search

Issue before the Court: “In the absence of exigent circumstances or consent, does Texas Transportation Code §724.012(b)(3)(B) violate the Texas and U.S. constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times?”

Sutherland v. State (2014)- On the night of February 2, 2011, Austin PD Officer Housmans initiated a traffic stop after a vehicle changed lanes without using a turn signal.  Once the vehicle had pulled over, Housmans approached the driver, appellant Sutherland, and, after speaking with him for “a bit,” asked the appellant to step out of the vehicle.  Housmans administered field sobriety tests on appellant, and arrested appellant based on his performance on the tests and on his suspicion that the appellant was driving while intoxicated.  Appellant refused to provide a breath specimen. Dispatch provided Housmans with Texas DPS records showing that appellant had two or more previous convictions for DWI.  The appellant was then transported to the Travis County jail where, ultimately, a blood sample was drawn without appellant’s consent and without a warrant.

Following the trial court’s denial of a motion to suppress evidence of his intoxication, appellant pleaded guilty to the charges but reserved his right to appeal the trial court’s ruling.  The appellant appealed his conviction for felony DWI.  The appellant challenged the constitutionality of the procedure and authority under which a sample of his blood was taken without his consent.  Appellant contends that the trial court erred by denying his motion to suppress the results of the testing done on the sample of his blood taken in such a manner.

Housmans claimed that he relied on the provision of the Texas Transportation Code that required him to obtain a sample of a suspect’s blood whenever he learns that the individual has been convicted two or more times of DWI.  Appellant maintained that, regardless of the mandatory language of the Transportation Code, constitutional protections against unreasonable searches and seizures require that a warrantless search be supported by an established exception to the Fourth Amendment’s warrant requirement, in this case, the exigent circumstances exception.  Appellant further contended that no established exception-exigent circumstances or otherwise – applied here.

According to the Seventh Court of Appeals- Amarillo, the arresting officer was not faced with exigent circumstances such that the natural dissipation of alcohol from appellant’s bloodstream would support a warrantless seizure of a specimen of appellant’s blood.  The arresting officer did not describe any factors that would suggest he was confronted with an emergency or any unusual delay in securing a warrant.  He testified that he made no effort to obtain a warrant because he believed that the law required that he obtain a blood sample under the circumstances presented to him.  The appellant was not transported to the hospital for medical care, the scene of the traffic stop was not very far from the booking facility, and transportation time was not a factor that could be said to lend to the exigency of the circumstances.  Furthermore, while the unavailability of a magistrate may affect whether an exigency exists to justify a warrantless blood draw, a magistrate is available twenty-four hours a day, every day at the Travis County central booking facility.  Therefore, based on these facts, the trial court erred by denying the defendant’s motion to suppress.  Reversed and remanded.

Mar21
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When The Police May Search a Home Over Occupant Objection

ByWarrantless Search

Can police obtain consent from a co-tenant to conduct a warrantless search a dwelling after another co-tenant, who objected to the search, is lawfully removed?

The Supreme Court said YES in Fernandez v. California.  Read more below to see what happened and when the police can search a home without a warrant over a tenant’s objection.

Fernandez v. California (2014) – Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas answered.  She appeared to be battered and bleeding.  When the officers asked Rojas to step out so that they could conduct a search of the apartment, Fernandez came to the door and objected to the search.  Suspecting that he had assaulted Rojas, the officers removed Fernandez from the apartment and placed him under arrest. He was later identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’s oral and written consent and searched the premises where he found several items linking petitioner to the robbery.

At trial, Fernandez moved to suppress the evidence seized in the warrantless search.  The trial court denied Fernandez’s motion to suppress the evidence, and he was convicted.  The California Court of Appeals affirmed the conviction.  It held that because Fernandez was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, did not apply, and therefore, Fernandez’s suppression motion had been properly denied.

In a 6-3 decision, the Supreme Court ruled that police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected.  Here, the Court said that Fernandez did not have a right to prevent the search of his apartment once Rojas had consented.  Although an officer usually needs a warrant from a judge to search a home, home searches are legal whenever the officers are able to obtain consent from an occupant.  According to the Court, “A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant.” Furthermore, “Denying someone in Rojas’ position the right to allow the police to enter her home would show disrespect for her independence.” The judgment of the Court of Appeals was affirmed.

Jan22
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CCA Reverses a “Nonconsensual” Police Encounter

BySearch & Seizure

Illegal Search and Seizure Defense Attorneys

What exactly is a “Consensual Encounter” between a police officer and a citizen?  The trend in Texas search and seizure law over the past several years seems to indicate that any time a police officer does not have reasonable suspicion to justify a detention of an individual (or probably cause to arrest), the courts label the unreasonable detention as a “consensual encounter,” thereby justifying the illegal search and sustaining the investigative actions that follow.  The courts reason that the citizen was free to leave at any time during the officer’s questioning so the 4th Amendment is not implicated.

My question has always been” “Exactly what do you think the officer would have done if the person tried to leave during this encounter?” In the case that follows, the Texas Court of Criminal Appeals takes a huge step in the right direction against “consensual encounters.”

Johnson v. State – One night, a resident of an apartment complex called 911 to report a suspicious person- an unidentified black male who was sitting out front of the leasing office watching cars.  In response to her call, a Houston Police officer went to the complex.  Although the officer did not see anyone outside the leasing office, he noticed a vehicle that was backed into a parking space with its lights on.  The officer parked his car in a manner in which the appellant would have had to maneuver around the car to leave and shined his high-beam spotlight in the car.  Believing that appellant could be the suspect, the officer approached the driver side door where he smelled an odor of marijuana.  Despite the fact that the appellant’s clothing did not match the description given by the resident, the officer spoke to the appellant using a ‘loud authoritative voice.’  During the officer’s interaction with the appellant, he smelled an odor of marijuana coming from inside the car.  The officer did not see the marijuana until after he asked appellant to step out of the car.  The officer arrested the appellant and charged him with misdemeanor possession of marijuana.

Appellant filed a motion to suppress asserting that his seizure was made without any reasonable suspicion that he was engaged in any criminal activity and that the acquisition of the evidence was not pursuant to a reasonable investigative detention or pursuant to an arrest warrant.  The trial court denied the motion holding that appellant had been detained and that the officer acted reasonably under the circumstances and did have articulable facts that justified the minimal detention.  The court of appeals affirmed the trial court’s judgment holding that a reasonable person in appellant’s position would have believed that he was free to ignore the officer’s request or terminate the interaction, thus making the initial interaction a consensual encounter rather than a Fourth Amendment seizure.

Police and citizens may engage in three distinct types of interactions: consensual encounters, investigative detentions, and arrests. Consensual police-citizen encounters do not implicate Fourth Amendment protections.  But, when a seizure takes the form of a detention, Fourth Amendment scrutiny is necessary and it must be determined whether the detaining officer had reasonable suspicion that the citizen is, has been, or is about to be engaged in criminal activity.

On review of the denial of appellant’s motion to suppress evidence that led to his marijuana conviction, the Court of Criminal Appeals held that the court of appeals erred in holding that the officer did not detain the appellant.  Under the totality of the circumstances, a reasonable person would not have felt free to leave.  When the officer (1) shined his high-beam spotlight into appellant’s vehicle, (2) parked his police car in such a way as to at least partially block appellant’s vehicle, (3) used a “loud authoritative voice” in speaking with appellant, (4) asked “what’s going on,” and (5) demanded identification, a detention manifested.  The Court of Criminal Appeals reversed and remanded the case to the court of appeals to consider the trial court’s determination that the officer had reasonable suspicion to detain the appellant and to decide whether that detention was valid.

Jan10
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Reliable Enough for Probable Cause

ByProbable Cause

When a probable-cause affidavit describes a “controlled purchase” that was performed by an individual whose credibility or reliability were unknown, is that (or can it be) sufficient to sustain a probable-cause determination?  The Court of Criminal Appeals said YES in Moreno v. State.

Moreno v. State: After receiving a tip from the Clovis, New Mexico Police Department that Appellant, Dimas Moreno, was distributing narcotics from his home, the Lubbock police department orchestrated a controlled purchase of drugs from Appellant. Officers enlisted the help of a confidential informant (“CI”), who was familiar with cocaine deals, to purchase crack cocaine from Appellant. The CI approached an unknowing participant in an effort to purchase the crack cocaine. The individual told the CI that he would go to Appellant’s house to pick up the crack cocaine. Police observed the individual go to Appellant’s house, enter, and exit a few minutes later. The unknowing participant then drove to the predesignated location and delivered the crack cocaine to the CI.

On the basis of these facts, a magistrate issued a warrant to search Appellant’s residence for crack cocaine and any other related contraband. After executing a warrant, police found the drugs and arrested Appellant. Appellant was subsequently charged with possession with intent to deliver a controlled substance in an amount of four or more but less than 200 grams. Appellant filed a motion to suppress, challenging the sufficiency of the affidavit. He claimed that there could be no probable cause when an affidavit describes a controlled purchase in which an unidentified individual of unknown credibility and reliability purchased the drugs.

The trial court held a hearing and denied Appellant’s motion. Appellant preserved his right to appeal, pled guilty and was sentenced to fifteen years’ confinement. The court of appeals affirmed, concluding that the affidavit was sufficient because probable cause was based upon police observations rather than upon any statements made by the unknowing participant.

To issue a search warrant, a magistrate must first find probable cause that a particular item will be found in a particular location. The magistrate must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

In this case, the court of criminal appeals held that the police observations of the controlled purchase and the reasonable inferences therefrom were sufficient to support a finding of probable cause. It was reasonable for the magistrate to infer that the unknowing participant obtained the crack cocaine from Appellant’s house based on “common-sense conclusions about human behavior.” While it was possible that the third party obtained the cocaine from another source, Appellant presented no persuasive argument as to why the magistrate’s inference was unreasonable or whether the unknown participant had a motive to mislead the police. Therefore, the judgment of the court of appeals was affirmed.

Search & Seizure Defense Lawyers | Fort Worth, Texas

If you or a loved one were the subject of an unconstitutional and illegal search, seizure, or arrest, please contact us today for a free consultation of your case.

Jan07
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Parole by Mistake: No Credit Toward Sentence

ByParole

If a person convicted of aggravated rape is paroled by mistake, is that person entitled to street-time credit for the period between his release and the revocation of his release?

The 5th Circuit said NO in Rhodes v. Thaler.

Rhodes v. Thaler, 713 F.3d 264 (5th Cir. 2013): Mandell Rhodes, Jr. was convicted of aggravated rape in 1980. He was paroled in 2004, but returned to prison in 2006 after violating a condition of his release. Rhodes claimed that he was denied street-time credit for the two years that he was on parole which “could have been used to accelerate his automatic release to mandatory supervision.”

According to Rhodes, Texas law required that when an inmate is released in error through no fault of his own, he is entitled to be credited with all earned street-time credit upon his return to prison. The denial of such credit, he argued, was a violation of due process.

Rhodes sought habeas relief in federal district court. The district court denied his petition. Through a Certificate of Appealability, the 5th Circuit was granted jurisdiction to decide the appeal and consider Rhodes’s argument that his street time should have been restored because he was erroneously released to parole. According to the 5th Circuit, Rhodes’s petition could only be granted if one of his constitutional rights had been violated.

In order to prevail under due process, Rhodes must have had a “liberty interest” in his claimed street-time credit. If he did not have a liberty interest in that street-time credit, he was due no more process than he received. In determining whether Rhodes had a liberty interest in the street-time credit he demanded, the 5th Circuit looked to Texas’ law of releasees that was in effect when his release was revoked.

At the time Rhodes’s parole was revoked, Texas’ “street-time credit statute,” Tex. Gov’t Code §508.283, controlled. According to §508.283, “if the parole, mandatory supervision, or conditional pardon of a person described by §508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person’s release to the date of revocation.” According to the Court of Criminal Appeals, §508.149(a) includes persons- like Rhodes- who have been convicted of aggravated rape.

Therefore, because Rhodes was not entitled to street-time credit for that period, he had no protected liberty interest that was subject to due-process protection. Rhodes was only entitled to federal habeas relief if he was deprived of street time credit without due process. Because Rhodes had no protected liberty interest in the street-time credit that he claimed to have accrued, his due-process right was not violated. Therefore, the district court’s denial of Rhodes’s habeas petition was affirmed.

Nov22
Love1

Supreme Court Decision Watch: Conflicting Consent to Search

BySearch & Seizure

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HEREis Scotusblog’s page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant’s motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas’ consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit’s analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant’s consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

Nov15
Love0

Stepmother Acquitted on Appeal for Appendicitis-related Death of Stepdaughter

ByManslaughter

Having a sick child can be a scary thing. Especially when you can’t figure out why they are sick. In this case, neither the school nurse nor the stepmother could figure out why the child was complaining. Read what happened.

In Britain v. State, the complainant, eight-year-old Sarah Brasse, went to her school nurse’s office complaining of a stomachache.  During her first visit, the nurse had her lie down for a little while and then sent her back to class.  Sarah returned two more times to the nurse’s office, visibly uncomfortable and crying.  After conducting a physical exam, which showed no abnormalities, the nurse decided to send her home.

The appellant, Sarah’s stepmother, picked her up. Later that evening, Sarah began vomiting and developed diarrhea.  Around six p.m. the next day, the appellant found Sarah dead.  Rigor had already set in by the time paramedics arrived, but appellant reported having checked on her only fifteen or twenty minutes before.  The emergency-room doctor estimated that the time of death was around three p.m.  Acute appendicitis was the cause of death.

A jury convicted appellant of manslaughter and injury to a child for recklessly causing the death of her stepdaughter.  The Court of Appeals held there was insufficient evidence that the appellant was “aware of but consciously disregarded a substantial and unjustifiable risk” as required to prove recklessness.  The Court of Appeals reversed the trial court’s decision and acquitted appellant on both counts.

The Texas Court of Criminal Appeals granted the State’s petition for discretionary review to answer one question: Should the Court of Appeals have reformed the verdict to the lesser-included offense of criminally negligent homicide rather than rendering a verdict of acquittal?

The CCA affirmed the Court of Appeal’s rendering. To prove that the appellant acted negligently, the State would have had to show beyond a reasonable doubt that the appellant ought to have been aware of the substantial and unjustifiable risk posed by not taking Sarah to a doctor and that such a failure was a gross deviation from the standard of care than any ordinary person would have exercised.  The State failed to meet this burden.  Because there was no evidence concerning the standard of care an ordinary person should be held to or that showed the appellant should have been aware of the risk to Sarah, the State failed to prove beyond a reasonable doubt that the appellant acted with negligence.  Therefore, the Court of Appeals did not err in rendering a judgment of acquittal.

While many parents would have probably taken the child to the doctor, the Court of Appeals simply could not hold that the stepmother committed a crime by not doing so.

Nov11
Love0

No Solicitors or Drug-Sniffing Dog!

ByWarrantless Search

The Legality of Drug-Sniffing Dog Searches

Let’s face it, nobody really likes uninvited guests on their front porch, unless, of course, it is the time of year when the Girl Scouts are selling cookies or little trick-or-treat monsters are out and about.  Aside from that, I’m not too keen on having people drop by unannounced, especially if that person is trying to investigate a crime or conduct a search and seizure.

The United States Supreme Court recently considered a case involving an unannounced (and unwelcome) furry visitor to a man’s front porch.  The question presented was this:  Is a dog sniff at the front door of a suspected drug house by a trained narcotics detection dog a Fourth Amendment “search” requiring probable cause?

In a 5-4 decision authored by Justice Scalia, the Supreme Court said YES, the use of the drug-sniffing dog was an unreasonable search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)-  In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines.  One month later, police took a drug-sniffing dog to Jardines’s front porch, where the dog gave a positive alert for narcotics.  Officers obtained a search warrant, which revealed marijuana plants inside the home.  Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion but the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines’s home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.

The Supreme Court of the United States granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment.  The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes.  While custom typically permits a visitor to approach the home “by the front path, knock promptly, wait briefly to be received, and then leave,” it does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around for incriminating evidence.  Therefore, the government’s use of trained police dogs to investigate the home and its immediate surroundings was a “search” within the meaning of the Fourth Amendment.

To learn more about Police Canine Training, check out our friend and trainer Steve Scott at Scott’s Police K9 in North Texas.

Oct24
Love0
Handgun on a wooden surface with text overlay "WHEN A DEADLY WEAPON IS NOT A DEADLY WEAPON" and logo of Howard Lotspeich Alexander & Williams, PLLC, relevant to discussions on deadly weapon classifications in Texas law.

When is a Deadly Weapon Not a “Deadly Weapon?”

ByDeadly Weapon

The Frustrating “Deadly Weapon” Issue

Black semi-automatic handgun on a wooden surface with text overlay "WHEN A DEADLY WEAPON IS NOT A DEADLY WEAPON" and logo of Howard Lotspeich Alexander & Williams, PLLC, relevant to Texas criminal law discussion on weapon classification.The “deadly weapon finding” under Texas criminal law is an issue that leads most criminal defense lawyers to bang their collective heads against the courthouse wall. It seems that just about anything and everything is, has been, or will soon be, designated as a “deadly weapon” when the prosecution deems it helpful to securing a conviction and lengthier sentence. Here are some deadly weapons that we’ve seen recently: car, fist, baseball bat, walking stick, STDs, fire, fake gun, etc.

In the case below, the Texas Court of Criminal Appeals finally ratcheted back the power of the State to enhance a case with a deadly weapon finding.  Kudos to the 1st Court of Appeals (Houston) for stepping out on this issue.

Question Presented:  To support a deadly-weapon finding, must the “exhibition” of the deadly weapon facilitate, in some manner, the felony offense? Or is it sufficient that the exhibition of the deadly weapon occurs simultaneously with the felony but is unrelated to its commission?

In Plummer v. State, the Houston Court of Appeals, First Judicial District, held that there “must be some facilitation purpose between the weapon and the associated offense to support a deadly-weapon finding.”